Cross-Border Proceedings in Family Law Matters before National Courts and CJEU
In its Report of 15 April 2014, the Commission has identified a number of gaps and difficulties arising in the application of Regulation (EC) 2201/2003 concerning divorce and parental custody matters (hereinafter: BIIbis or Regulation). The ‘rush to court’ arising from alternative nature of jurisdictional grounds, absence of the possibility to agree on the competent court and the confusion arising out of Article 6 are only some of drawbacks of the jurisdictional rules in matrimonial matters. Similarly, abundant case law of the Court of Justice of the European Union (CJEU) points to shortcomings of procedural framework of the Regulation in matters of parental responsibility. The supplementary provisions to the 1980 Hague Child Abduction Convention and the lack of a provision on a forum necessitatis can be mentioned as examples. The same holds true for provisions on the recognition and enforcement of decisions, especially those rendered in matters of parental responsibility.
Aims of the Project
This project aims to identify difficulties in the application of the BIIbis experienced by national courts and to offer best practices in dealing with them. The purpose is to enhance the efficiency and consistency in the application and interpretation of the BIIbis and thereby to contribute to its correct and consistent implementation. At the same time, the project intends to offer guidance and recommendations on how to deal with the problems encountered and particularly by suggesting amendments to the BIIbis. Within that context, it is examined whether introducing a certain degree of party autonomy would be a suitable tool to remedy the existing shortcomings and to find the most appropriate approach in accommodating party autonomy in the BIIbis. Also, it is analysed to what extent the legal approaches applied in a number of other private international law instruments regulating family law issues may prove useful when revising the BIIbis for the sake of achieving the synergy of private international law instruments on family law matters. Within that framework, it seeks to examine the relevance of the Regulation (EU) 606/2013 in the context of measures requested in legal proceedings in family matters.
Analytical and Comparative Research
In order to achieve the objectives, this project combines extensive analytical and comparative research. It analyses legislation, case law and the practice of national courts of the EU Member States as well as literature in the field. The research also includes an analysis of National Reports of all EU Member States, which were submitted by National Reporters in accordance with the Questionnaire distributed to them.
The final results of the research are reproduced in a Guide for Application of the Brussels IIbis Regulation. The Guide for Application presents a commentary based on the analysis of the provisions of the BIIbis, National Reports of all EU Member States, relevant CJEU case law and comparative literature. As aimed and expected, the Guide both determines the best practices of the BIIbis’s application as well as offers guidance and recommendations on how to deal with the problems encountered. The Guide will be published in hard copy in 2018. The Recommendations offer suggestions to amend the BIIbis in order to enhance the efficiency and consistency in application of the BIIbis. They include the suggestions on how to embrace party autonomy in the BIIbis and how to achieve greater consistency among various instruments that unify different aspects of private international law in family matters.
This research is conducted by the T.M.C. Asser Instituut in cooperation with Utrecht University, International Legal Institute, Ghent University, and the University of Valencia. Project Leader is Prof. Dr. Vesna Lazic, Senior Researcher at the Asser Institute and Associate Professor at Utrecht University.
- Prof. Mr. Wendy Schrama (Utrecht University)
- Mr. Dr. Richard Blauwhoff (International Legal Institute)
- Lisette Frohn (International Legal Institute)
- Prof. Dr. Jinkse Verhellen (Ghent University)
- Dr. Pablo Quinzá Redondo (University of Valencia)
- Prof. Dr. Carlos Esplugues Mota (University of Valencia)
The project is funded by the European Commission, DG Justice (JUST/2014/JCOO/AG).